1. Heard learned counsel for the applicants, Sri Ashutosh Kumar Sand, learned AGA Ist assisted by Ms. Manju Thakur A.G.A. Ist for the State and perused the materials on record.
2. Invoking the inherent jurisdiction under Section 482 Cr.P.C., applicants herein seeks to challenge legality, propriety and correctness of the order dated 24.9.2018 passed by Judicial Magistrate, IInd Ballia, whereby the applicants have been summoned under Sections 323, 392, 504, 506 IPC and Section 3(I)(X) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
3. This case has checkered history of litigation mainly on the issue that emanates for consideration in this application is whether opposite party no.2/complainant belongs to Schedule Caste or not and whether there is prima facie evidence on record against the applicants for summoning them to face trial for the offence under Section 3(I) (X) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Brief facts
4. The factual matrix of the case is that complainant/opposite party no.2 filed a complaint dated 4.1.2013 against the applicants making allegation that on 18.12.2012 at about 7.00 PM when complainant alongwith his younger brother after closing their clinic were returning to their house on motorcycle, the applicants forcibly stopped them in the way and intentionally abused and insulted them by caste name with intend to humiliate in a public place for not paying extortion to the applicants. On making resistance, the applicants started assaulting complainant and on the point of country made pistol (katta) they forcibly snatched the golden chain from the neck of complaint and Rs. 2780 from the pocket of the complainant and also forcibly snatched Rs. 2250 from the pocket of brother of the complainant. In the complaint, complainant has mentioned that he is 'Turaiha' by caste, which comes under the scheduled caste category. The said complaint of the complainant was registered as Case No. 3 of 2013 in the court of learned Judicial Magistrate.
5. On 15.1.2013, statement of complainant was recorded under Section 200 Cr.P.C. in which, he repeated the same version as mentioned in the complaint. On 17.1.2013, the statement of PW-1 Ram Nath Prasad and PW-2 Prem Kumar were recorded under Section 202 Cr.P.C. in which, also they have supported the case of complainant.
6. The learned Magistrate Ist Ballia by order dated 25.2.2013 had summoned the applicants to face trial only under Sections 323, 504, 506, 379 IPC mentioning the caste of the complainant as 'Turha' while in the complaint, the complainant has mentioned his caste as 'Turaiha'. Thereafter, the applicants moved their bail applications and granted bail by the court below as mentioned by them in para 9 of the application.
7. It is submitted that on 24.8.2013, the statement under Section 244 Cr.P.C. of opposite party no.2/complainant was recorded before the court below as PW-1 and statement of prosecution witness, namely, Ram Nath Prasad was recorded as PW-2 on 12.9.2013, in which they repeated the version of the complaint.
8. At this stage, the complainant filed an application dated 17.12.2013 before the Judicial Magistrate Ist, Ballia praying therein to frame charges against the applicants under Sections 323, 504, 506, 392 IPC and 3(1)(10) SC/ST Act. The objection dated 23.1.2014 was also filed by the applicants praying therein to reject the aforesaid application dated 17.12.2013 of the complainant mainly on the ground that offence under Section 392 IPC is not made out against them and the complainant is 'Turha' by caste and does not comes under the category of Scheduled caste. The complainant by committing fraud has procured a wrong certificate of Scheduled caste showing his caste as 'Turaiha' in place of 'Turha'. Thereafter charge under Section 3(I)(X) SC/ST Act is not liable to be framed against them.
9. Learned Judicial Magistrate vide order dated 17.4.2014 rejected the application dated 17.12.2013 of the complainant mainly on the two grounds that initially the accused/applicants were summoned vide order dated 25.2.2013 only under Sections 323, 504, 506, 379 IPC, but the complainant did not file any revision against the said summoning order and this Court is not empowered to frame charge under Section 3(1) 10 SC/ST Act.
10. The complainant being aggrieved by order dated 17.4.2014 of learned Judicial Magistrate preferred Criminal Revision No. 100 of 2014 before the Sessions Judge, Ballia. The said revision was allowed by the Additional Sessions Judge, Court No.2 Ballia vide order dated 8.10.2015 setting aside the order dated 17.4.2014 passed by Judicial Magistrate, Ist Ballia remanding the matter to decide afresh in the light of directions given in the order dated 8.10.2015 and pass a fresh order according to law after hearing the parties.
11. Accused/applicants aggrieved by the order dated 8.10.2015 of Additional Sessions Judge, Ballia preferred Criminal Revision No. 4299 of 2015 before this Court, which was dismissed vide order dated 8.1.2016 with the observation that without being influenced by the observations recorded by the revisional court, the issue involved in the matter be decided afresh by the Magistrate concerned after affording opportunity to both the parties. It was further clarified by this Court that if it is found by the Magistrate concerned that offence under Section 3(1)(x) SC/ST Act is made out in the matter, then the case may be committed to the Court having jurisdiction to try the matter. The order dated 8.1.2016 passed by this Court is reproduced herein below:-
"Heard learned counsel for the revisionists and learned AGA for the State as well as learned counsel for the opposite party no.2 and perused the record.
This criminal revision is directed against the judgment and order dated 8.10.2015 passed by Addl. Sessions Judge, Court No.2, Ballia in criminal revision no.100 of 2014 (Dharamnath Prasad Vs. State of U.P.) whereby the revisional court while allowing the aforesaid revision dismissed the order dated 17.4.2014 passed by the Judicial Magistrate-I, Ballia in case no.3 of 2013 (Dharamnath Prasad Vs. Pintu Singh and others) under sections 323, 504, 506, 379 IPC, P.S. Sahatawar, District Ballia.
Submission of the learned counsel for the revisionists is that the complainant does not belong to scheduled caste. The revisional court in the order dated 8.10.2015 has illegally observed that a prima facie case regarding constitution of offence under section 3 (1) (x) SC/ST (Prevention of Atrocities) Act is also made out against the revisionists and has illegally allowed the revision setting aside the order passed by the Magistrate concerned on 17.4.2014. Referring to the letter annexed with the revision, an information gathered through the Right to Information Act and also the evidence recorded under section 244 Cr.P.C., prayer was made that findings recorded by the revisional court are perverse and illegal.
On the contrary, learned A.G.A. as well as learned counsel for opposite party no.2 argued that the finding recorded by the revisional court regarding the fact that the complainant belongs to scheduled caste category is in accordance with law. There are sufficient evidence on record to show that the complainant belongs to scheduled caste. There is also sufficient evidence on record to proceed with the trial for the offence under section 3 (1) (x) SC/ST (Prevention of Atrocities) Act against the revisionists. Hence, there is no illegality or perversity in the order passed by the revisional court.
I have considered the rival submissions of the learned counsel for the parties and have also gone through the papers annexed with the revision as well as the Letter No.3646 / 26 - 3 - 2010 dated 28.12.2010 issued by the Secretary, Govt. of U.P. to all the District Magistrates regarding issuance of caste certificates, as referred to by the learned counsel for the revisionists.
Only dispute in the matter is that whether the complainant belongs to Turha or Turaiya or Turaiha and whether they are included in the List of Scheduled Caste category of the State of U.P.
Since the revisional court has set-aside the order dated 17.4.2014 and directed the Magistrate concerned to hear the matter afresh on the issue and pass an appropriate order in the light of the observations recorded, the Magistrate concerned in the order dated 17.4.2014 has observed that he has no jurisdiction to frame the charge under section 3 (1) (x) SC/ST (Prevention of Atrocities) Act, therefore, application was rejected.
If the observations made by the Magistrate concerned and the revisional court are compared with the Government Letter referred to above and also with the facts and evidence of the present matter, the observation recorded by the Magistrate concerned that he has no jurisdiction to frame the charge for the offence committed by the accused under section 3 (1) (x) SC/ST Act may be true, but the Magistrate concerned has jurisdiction to commit the case if he or she finds that offence under section 3 (1) (x) SC/ST Act is made out or there is sufficient evidence to proceed with the trial for the said offence. Thus, the revisional court has rightly set-aside the order passed by the Magistrate. No illegality or infirmity is found in the order dated 8.10.2015 passed by the revisional court.
Thus, revision is dismissed at this stage with the observation that without being influenced by the observations recorded by the revisional court, the issue involved in the matter be decided afresh by the Magistrate concerned after affording opportunity to both the parties.
If it is found by the Magistrate concerned that offence under section 3 (1) (x) SC/ST Act is made out in the matter, then the case may be committed to the Court having jurisdiction to try the matter."
12. In view of above, the learned Judicial Magistrate heard the matter afresh in the light of order dated 8.10.2015 of Additional Sessions Judge, Ballia and vide order dated 3.10.2016 allowed the application dated 17.12.2013 of the complainant in part rejecting the prayer of the complainant to summon the accused application under Section 3(1)(X) SC/ST Act and fixed further date for framing of charges under Sections 323, 504, 506 and 392 IPC against the accused/applicants.
13. The complainant feeling aggrieved again preferred Criminal Revision No.212 of 2016 before Additional Sessions Judge, Ballia against the order dated 3.10.2016 passed by learned Judicial Magistrate. The learned Additional Sessions Judge, Ballia allowed the Criminal Revision No. 212 of 2016 mainly on the ground that the learned Magistrate while passing the order dated 3.10.2016 has only considered the order dated 8.10.2015 passed in Criminal Revision No. 100 of 2014 and did not consider the order dated 8.1.2016 passed by the High Court in Criminal Revision No. 4299 of 2015 and the learned Magistrate also did not decide the issue whether offence under Section 3(I)(10) SC/ST Act is made out against the accused persons or not. As such, the revisional court by order dated 15.2.2017 set aside the order dated 3.10.2016 of learned Judicial Magistrate IInd, Ballia directing the learned Magistrate to decide the matter afresh after giving opportunity to the parties concerned according to law in the light of order dated 8.1.2016 passed by High Court in Criminal Revision No. 4299 of 2015 as well as direction given in the order dated 15.2.2017 passed in Criminal Revision No. 212 of 2016.
14. On remanding the matter to the learned Judicial Magistrate, he passed the order dated 16.3.2017 observing that on perusal of order dated 15.2.2017 of Sessions court and record it appears that the matter is related to Scheduled Caste and Schedule Tribes Act, therefore, a letter may be sent to the Sessions Judge to transfer the case before the competent court having jurisdiction to try the case under the SC/ST Act. Accordingly, the case was transferred from the court of Judicial Magistrate IInd, Ballia to the Court of Additional Sessions Judge, Ballia and registered as complaint case no. 24 of 2017. After some dates, it was noticed by the Additional Sessions Judge, Ballia that the case has been wrongly transferred from the court of learned Judicial Magistrate to the court of Additional Sessions Judge without deciding the issue on merit in compliance of order dated 15.2.2017 passed in Criminal Revision No. 212 of 2016.
15. In view of above, the Additional Sessions Judge, Court No.2, Ballia vide order dated 11.10.2017 directed to send the file back to the learned Magistrate to decide the issue on merit in compliance of order dated 15.2.2017 of the revisional court passed in Revision No. 212 of 2016.
16. In the aforesaid background of the facts, learned Judicial Magistrate II, Ballia has heard the argument of the learned counsel for the parties on the application dated 17.12.2013 of the complainant afresh and passed the order dated 24.9.2018 holding that there is sufficient prima facie evidence to summon the accused under Sections 323, 392, 504, 506 IPC and Section 3(I)(X) of SC/ST Act. In view of above, learned Magistrate summoned the accused/applicants Pintu Singh and Hare Ram Singh under Sections 323, 392, 504, 506 IPC and 3(I)(X) Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The aforesaid order dated 24.9.2018 of Judicial Magistrate, Ballia has been challenged by the applicants before this Court in the present application under Section 482 Cr.P.C.
Submission raised on behalf of accused/applicants
17. Learned counsel for the applicants assailing the order dated 24.9.2018 of learned Judicial Magistrate has contended that:-
(i) The learned Magistrate has passed the order dated 24.9.2018 in routine and mechanical manner without applying his judicial mind and without considering the facts and circumstance of the case.
(ii) The learned Magistrate has recorded the wrong finding that the offence under Sections 3(I)(X) SC/ST is made out in this case.
(iii) Learned Magistrate has also failed to appreciate the fact that the alleged place of occurrence is not a public place as per timing.
(iv) The complainant is in fact ''Turha'' by caste but procured wrong caste certificate by committing fraud showing his caste as 'Turaiha' in place of 'Turha'.
(v) Much emphasis has been given on the averment made in para 31 to 35 of the application submitting that in the year 2014 proposal was made by the Government of U.P. For inclusion of 17 castes of U.P. including caste 'Turha' in the SC/ST list, which was accepted by the Central Government and by G.O. dated 21.12.2016 and 22.12.2016 authorities were directed to issue caste certificate of SC/ST Act from the aforesaid 17 castes including the caste 'Turha'. The aforesaid G.O. dated 21.12.2016 and 22.12.2016 regarding inclusion of 17 castes including caste 'Turha' in the list of SC/ST has been challenged before the High Court in Public Interest Litigation (PIL) No. 2129 of 2017 wherein High Court has passed the interim order dated 24.1.2017 directing the authorities not to issue any caste certificate on the basis of the aforesaid government orders. Thereafter, pursuant to said interim order dated 24.1.2017, Special Secretary, Government of U.P. issued a circular dated 27.1.2017 to all the Commissioners and District Magistrate of U.P. intimating that until further order of the High Court, the effect and operation of G.O. dated 21.12.2016 and 22.12.2016 shall remain suspended.
(vi) On the strength of aforesaid submission, the effort has been made to establish that the complainant is 'Turha' by caste and the Government Orders by which the caste 'Turha' has been included in the list of scheduled caste category has been stayed by the High Court and the matter is sub-judice, therefore, the complainant cannot be said to be to a person of scheduled caste and the impugned order datd 24.9.2018 passed by the Judicial Magistrate is liable to be quashed and the present application of the applicants is liable to the allowed.
(vii) The learned Magistrate exceeded his jurisdiction in taking cognizance of the offence relating to SC/ST Act as per provisions of Scheduled Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989 as amended by Act No. 01 of 2016 with effect from 26.1.2016.
Submission raised on behalf of State
18. Per contra, Sri Ashutosh Kumar Sand, learned Additional Government Advocate, Ist has vehemently opposed the prayer of the applicants and contended that:-
(i) From the material on record the offence under Sections 323, 392, 504, 506 IPC and Section 3(I)(X) SC/ST Act are fully made out against the applicants.
(ii) There is no illegality in the order dated 24.9.2018 passed by the Judicial Magistrate.
(iii) It is the case of complainant since beginning in the complaint itself that he is 'Turaiha' by caste not the 'Turha' by caste.
(iv) The applicants in their objection dated 23.1.2014 have come up with the stand that the complainant has procured scheduled caste certificate by committing fraud showing himself as ''Turaiha'' by caste in place ''Turha''. There is no averment or material on record from the side of applicants that they had made any effort to get the scheduled caste certificate of the complainant canceled.
(v) From the letter dated 29.8.1997 of the State Government addressed to all District Magistrate of U.P. filed as Annexure No.18 with the application, it is clear that caste 'Turaiha' is included in the list of scheduled caste and has find place at serial no. 66 of the letter dated 29.8.1997. On this ground also the stand of applicants that the complainant does not belong to scheduled caste is against evidence on record and lastly prayed to dismiss the present application being devoid on merit.
Discussion
19. After having heard the submissions advanced on behalf of the learned counsel for the parties and perusing the material on record, it transpires that the order dated 24.9.2018 of the learned Judicial Magistrate clearly indicate that the same has been passed considering the order dated 15.2.2017 passed in Criminal Revision No. 202 of 2016 and order dated 8.1.2016 of the High Court passed in Criminal Revision No. 4299 of 2015 as well as taking into consideration the letter no.472 dated 26.3.2013 of Additional District Magistrate (Finance and Revenue) and Government order no. 3646/26-3-10 dated 28.12.2010, wherein it is mentioned that ''Turaiha'' caste comes under the category of Scheduled caste, therefore, the learned Magistrate considering the material on record formed his opinion and recorded the reason of his satisfaction that there is sufficient grounds to proceed against the accused/applicants under Sections 323, 504, 506, 392 IPC and 3(I)(X) SC/ST Act also. The applicants in the present application under Section 482 Cr.P.C. neither disputed the aforesaid G.O. dated 18.12.2010 and letter dated 26.3.2018 of the Additional District Magistrate (Finance and Revenue) nor made any averment in this regard. There is also no averment in the application from the side of the applicants that the scheduled caste certificate issued to the complainant showing his caste as 'Turaiha' has been cancelled.
It is also admitted case of the applicants that the "Turaiha" comes under the category of Scheduled Caste, therefore, this Court is of the view that unless the caste certificate of the complainant issued in the name of "Turaiha" is cancelled, it cannot be said that complainant does not belongs to Scheduled Caste. It is settled law by the Apex Court that at the stage of summoning the accused to face trial, the court is simply to see whether there is sufficient ground exist to proceed against accused on taking the allegation made in the complaint at their face value and accepting their entirety. At the stage of passing the summoning order only prima facie case will have to be seen. It is not required for the learned Magistrate to go into the merit and demerit of the case.
20. So far as the submission of the applicants on the point of jurisdiction of learned Magistrate is concerned, it would be relevant to mention here the brief history of the amendment in Act of 1989, which are as follows:-
(i) the act of 1989 has been constituted to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for special Courts for the trial of such offfences and for the relief and rehabilitation of the victims of such offences. The term "Special Court" is defined in Section 2(d) of the Act of 1989 and Section 14 speaks about the constitution of Special Court which states as under:-
"14. Special Court. For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district a Court of Session to be a Special Court to try the Offences under this Act."
(ii) The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Ordinance, 2014 was promulgated on 4.3.2014 to amend the Act of 1989, of which Section 14 provides as under:-
"14(1) For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, establish an Executive Special Court for one or more Districts:
Provided that in Districts where less number of cases under this Ordinance is recorded, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for such Districts, the Court of Session to be a Special Court to try the offences under this Ordinance:
Provided further that the Courts so established for specified shall have power to directly take cognizance of offences under this Ordinance.
(2) It shall be the duty of the State Government to establish adequate number of Courts to ensure that cases under this Ordinance are disposal of within a period of two months, as far as possible.
(3) In every trial in the Special Court or the Executive Special Court, the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Special Court or the Executive Special Court finds adjournment of the same beyond the following day to be necessary for reasons to be recorded in writing:
Provided that when the trial relates to an offence under this Ordinance, the trial shall, as far as possible, be completed within a period of two months from the date of filing of the charge-sheet"
(iii) The above-stated Section 14 of the Ordinance of 2014 would show that by the aforesaid Ordinance, jurisdiction has been conferred to the Special Court to directly take cognizance of offences under the Act of 1989 as amended by the Ordinance of 2014.
(iv) The life of the Ordinance was six months and thereafter, is expired. The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 came into force with effect from 26.1.2016 of which Section 14(1) provides as under:
"14 Special Court and Exclusive Special Court- (1).For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, establish an Exclusive Special Court for one or more Districts:
Provided that in Districts where less number of cases under this Act is recorded, the State Government shall, with the concurrence of the Chief Justice of the High Court, by the notification in the Official Gazette, specify for such Districts the Court of Session to be a Special Court to try the offences under this Act:
Provided further that the Courts so established or specified shall have power to directly take the cognizance of offences under this Act"
(v) By the aforesaid amendment, again it has been reiterated that the Special Court shall have power to directly take cognizance of offences under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. But the facts of the present case is slightly different. In this case cognizance of the case had already been taken by learned Magistrate-Ist, Ballia vide order dated 25.2.2013 and had summoned the applicants to face trial under Sections 323, 504, 506 and 379 IPC prior to coming into force of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities amendment) Act, 2015, which came into force with effect from 26.1.2016. The application dated 17.12.2013 of the complainant and objection dated 23.1.2014 of the applicants were filed after recording the statement of PW-1 and PW-2 under Section 244 Cr.P.C. prior to Scheduled Caste and Scheduled Tribes (Prevention of Atrocities amendment and ordinance) Act, 2014, which was promulgated on 4.3.2014 to amend the act of 1989, therefore, considering the facts of this case, it cannot be said that learned Magistrate exceeded his jurisdiction in taking cognizance in this matter. First time by order dated 24.9.2018, learned Magistrate has decided that sufficient prima facie evidence exist to summon the accused under Section 3(I)(X) SC/ST Act alongwith other sections of I.P.C.
21. Earlier after rounds of litigation, this Court by order dated 8.1.2016 passed in Criminal Revision No. 4299 of 2015 had issued specific direction that if it is found by the learned Magistrate that offence under Section 3(I)(X) SC/ST Act is made out in the matter, then the case may be committed to the court having jurisdiction to try the matter. There is nothing on record to indicate that the aforesaid order dated 8.1.2016 of this Court has been challenged by the applicants before the Apex Court. In view of above, direction issued by this Court in the order dated 8.1.2016 attained finality in respect of jurisdiction of the Court to try the offence under Section 3(I)(X) of SC/ST Act.
Finding
22. Considering the materials on record, this Court is of the view that there is no illegality in the order dated 24.9.2018 of the learned Magistrate to the extent in holding that prima facie offence under Sections 323, 392, 504, 506 IPC and 3(I)(X) SC/ST Act are made out against the applicants treating the complainant as Scheduled Caste being "Turaiha" by caste, hence the prayer of the applicant to quash the order dated 24.9.2018 and entire proceedings of Complaint Case No. 24 of 2017 to the extent, whereby applicants have been summoned under Sections 323, 392, 504, 506 IPC and Section 3(I)(X) SC/ST Act is refused, but so far as jurisdiction of court for trial of the applicants after summoning the applicants under Sections 3(I)(X) SC/ST Act is concerned, the order dated 24.9.2018 is modified in view of Section 14 of the SC and ST (Prevention of Atrocities) Amendment Act, 2015 directing the learned Judicial Magistrate IInd, Ballia to commit the case immediately to the special court having jurisdiction to try the offences under Section 3(I)(X) SC/ST Act.
With the aforesaid observation, application u/s 482 Cr.P.C. moved by the applicants stands disposed of.
Office is directed to communicate this order to the court concerned.
Order Date :- 30.11.2018 AK Pandey